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Gordhan Lal Vs. S.K. Durgia and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1214 of 1972
Judge
Reported in1976WLN(UC)188
AppellantGordhan Lal
RespondentS.K. Durgia and anr.
DispositionPetition allowed
Cases ReferredDr. Swayamber Prasad Sudrania v. State of Rajasthan and Anr.
Excerpt:
.....the order by the board dated the july, l972 approving and regulating the promotion of shri durgia, assistant engineer (civil) with effect from 3rd april, 969 is also bad on account of non-consideration of his case for promotion to the post of assistant engineer. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or..........1st may, 1971 and is still continuing in that capacity it is further alleged that respondent no. 1 shri durgia is a diploma holder only and he was appointed as junior engineer in the rajasthan state elect, city board in the year 1958. he was transferred and posted as junior engineers; (civil) by order dated 8th december, 1964 and two months thereafter he was apposite as assistant engineer on ad hoc basis. in 1966 a selection committee was constituted to approve regularize promotions and appointments of officers holding the post of assistant engineer. the committee' examined 5he rape of shri durgia on 26th. against, 1966 and found him unsuitable and consequently snri duraia was reverted to the post of junior engineer, but he was again promoted to the post of assistant engineer on.....
Judgment:

C.M. Lodha, J.

1. The only point urged in support of this writ petition is that the petitioner's case was not considered at me time of promoting respondent No. 1, Shri S.K. Durgia as Assistant Engineer, though the petitioner was also entitled to be considered for that post.

2. The relevant facts may be stated as follows: The petitioner obtained Delima in Civil Engineering in the year 1959 and was appointed as Junior Engineer m the Rajasthan Stop Electricity B and (respondent No. 2) by as order dated 24th February, I960 He passed Section B of the Associate Membership Examination of Institute of Engineers, India (hereinafter referred to as A.M.I.E.) on 1st August. 1968 A seniority list of Junior Engineers (Civil) was prepared on 1st March, 1986 and the petitioner was shown at serial No. 9 (vide Annexure'2) The petitioner was promoted as an Assistant Engineer (Civil) on ad hoc basis on 1st May, 1971 and is still continuing in that capacity It is further alleged that respondent No. 1 Shri Durgia is a Diploma holder only and he was appointed as Junior Engineer in the Rajasthan State Elect, city Board in the year 1958. He was transferred and posted as Junior Engineers; (Civil) by order dated 8th December, 1964 and two months thereafter he was apposite as Assistant Engineer on ad hoc basis. In 1966 a Selection Committee was constituted to approve regularize promotions and appointments of officers holding the post of Assistant Engineer. The Committee' examined 5he rape of Shri Durgia on 26th. Against, 1966 and found him unsuitable and consequently Snri Duraia was reverted to the post of Junior Engineer, but he was again promoted to the post of Assistant Engineer on 21stSeptember, 1966. But on being screened by the Screening Committee on let April, 1967 be was again found unsuitable and was reverted. His representation was also rejected by the Rajas than State Electricity Board on 7th August, 1967 and thereafter he proceeded on leave. However, he again came to be promoted as Assistant Engineer on and hoc basis on 3rd April, 1969. His case was considered by the Selection Committee and on its recommendation, the Board by its order dated 6th July, 1972 approved/regularised the promotion of Shri S.K. Durgia as Assistant Engineer (Civil).

3. The grievance of the petitioner is that he was eligible and entitled to be considered for promotion to the post of Assistant Engineer on 3rd April, 1969 when Shri S.K. Durgia was promoted as Assistant Engineer on ad hoc basis. His further grievance is that his case was also not considered by the Selection Committee when the promotion of Shri Durgia was approved/regularised.

4. The petition has been opposed by the Board on two grounds:

(1)It is urged, in the first instance : that the petitioner was not eligible for being considered for promotion to the post of Assistant Engineer on 3rd April, 1959, inasmuch as according to the Rajasthan State Electricity Board (Service of Engineers) Regulations Schedule 1 relating to junior posts, an A.M.I.E Junior Engineer becomes eligible for appointment as Assistant Engineer only when be has rendered two years service as Junior Engineer after passed his A.M.I.E. Examination. Since the petitioner passed his A.M.I.E. Examination on 16th November, 1963, he could not have been appointed as Assistant Engineer before 16th November, 1970. It is thus contended that on 3rd April, 1969 the petitioner's case could not have been considered for promotion to the post of Assistant Engineer.

(2)The other contention raised on behalf of the Board in this respect is that the Board, by its order dated 6th July, 1972, had simply approved/regularised the promotion of Shri S.K. Durgia Assister Engineer who had been promoted on ad hoc basis for a period of six months vide order dated 3rd April, 1969, It is submitted that Shri Durgia has not been substantively appointed as Assistant Engineer and the order must be construed only as the continuation of the term of Shri Durgia on ad hoc basis and, therefore, it was not necessary to put the case of the petitioner before the Selection Committee.

5. So far as eligibility and qualifications of the petitioner for being considered for promotion to the post of Assistant Engineer is concerned, reference may be made to item 4 of schedule 1 of the Rajasthan State Electricity Board (Service of Engineers) Regulations; The qualifications and experience arc auctioned as below:

B.E. (Civil) or A.M.I.E. (Civil) or qualification declared equivalent by Govt. with 3 years service as Junior Engineer (Civil) or if diploma holder (Civil) from a recognized institution with 7 years requisite experience as Junior Engineer (Civil).

6. There is no denying the fact that the petitioner's case is covered by the last clause namely 'if diploma bolder (Civil) from a recognized institution with 7 years requisite experience as Junior Engineer (Civil)'. But the contention of the learned Counsel for the Board is that since the petitioner has passed A.M.I.E. (Civil) Examination, his case will be governed by the qualifications pertaining to A.M.I.E. and he must have three years service as Junior Engineer to he qualified for being promoted as Assistant Engineer. It is true that if the petitioner's case is held to be covered by the clause pertaining to A.M.I.E, then be had not completed 3 years service as Junior Engineer on 3rd April, 1969. On the other hand, if his case is held to be governed by the last clause pertaining to Diploma Holder (Civil), then the petitioner was undoubtedly qualified for being promoted to the post of Assistant Engineer, as he bad completed 7 years service on 3rd April, 1969 I fail to understand why the petitioner should be considered not qualified rat rely because he has passed A.M.I.E Examination in addition to his being a Diploma Holder. His position cannot be made worse by his pissing A.M.I.E Examination. I therefore, hold that the petitioner was qualified to be considered for the post of Assistant Engineer (Civil) on 3rd April,1969. At this stage it may be pointed out that the fact that the promotion of Sari Durgia was on ad hoc basis would not disentitle the petitioner from consideration It was held in Dr. Swayamber Prasad Sudrania v. State of Rajasthan and Anr. 1971 (2) S.L.R. 767 that an employee has a right to ask for consideration of his claim 'or promotion along with others who are similarly situated even though it may be a case of temporary appointment. Not only that it was further observed that even in case of a leave vacancy selection must be made on a competitive basis and the cases of all the eligible candidates must be considered on merit. I hive, therefore, come to the conclusion but non-consideration of the petitioner's case for promotion to the post of Assistant Engineer (Civil) has the effect of making the appointment of the respondent No. 1 Shri Durgia invalid However, since the petitioner was also promoted as Assistant Engineer on ad hoc basils on 19t May, 1971, the only point that remains for consideration is that who should ck senior and that has to be decided with reference to the merits of both the candidates as on 3rd April, 1969.

7. Now as regards the Board's order dated 6th July, 1972, the contention of the learned Counsel for the Board is that this order must be deemed to be only an approval of the Beard for continuation of the service of Shri Durgia as Assistant Engineer on ad hoc basis. There is nothing on record to show that Shri Durgia was screened by the Selection Committee only for extension of his period as Assistant Engineer on ad hoc basis On the other band, the past history with reference to the screening of Shri Dutgia by the Selection Committee goes to show that it is a case of approval/regularisation by the lection Committee The order dated 6th July, 1972, therefore, cannot be characterized as innocuous having no significance. It puts a stamp on the suitability of the candidate whose promotion has been approved/regularized. In this view of the matter, there is no reason why the case of the petitioner was not put up before the Selection Committee for approval/regularisation. The order by the Board dated 6th July, 1972 approving and regulansing the promotion of Shri Durgia, Assistant Engineer (Civil) with effect from 3rd April, 1969 is also bad on account of non-consideration of the case of the petitioner who was equally situated for consideration of his case for promotion to the post of Assistant Engineer (Civil).

8. The result of the foregoing discussion is that. I set aside the Board's order dated 6th July, 1972 approving/regularising the promotion of Shri S.K. Dargia Assistant Engineer (Civil) promoted on ad hoc basis by the order dated 3rd April, 1969 and hereby direct that the Selection Committee will consider the case of the petitioner alongwith that of Shri S.K. Durgia and other persona if any eligible for promotion to the post of Assistant Engineer (Civil) equally situated with the petitioner and respondent No. 2 and thereafter pass fresh order regarding approval/regularisation of the promotion of such eligible candidates.

9. The writ petition is allowed to the extent mentioned above. But in the circumstances of the case the parties are left to bear their own costs.


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